H. R. 1215 – will a lawyer take your medical malpractice case?

If you listen to the Congressman who just voted for H. R. 1215 you would believe that a large number of medical malpractice trial lawyers are signing up lots of clients every day and filing lawsuits against doctors, and then getting huge settlements for false injuries. The implication is that the lawyers are making a lot of money doing this because they work on a contingency fee and get a percentage of the recovery. An exorbitant recovery according to these members of Congress and the insurance companies and powerful corporations that they do the bidding for is common. Let’s take a look at the economics of being a lawyer who sues doctors who injure people through substandard medical practices. I will leave it to you, for the moment, to review the facts in my prior article on the subject: “What rights will H. R. 1215 eliminate?

I receive 10 to 20 calls each month from someone who has suffered a serious permanent injury or death at the hands of a negligent doctor or hospital. The injuries run the gamut from doctors not performing tests over a long period of time resulting in the patient dying of cancer or some other condition, to prescribing the wrong medicine, to failure to monitor a medical condition in the way doctors are taught to do so and a whole array of other errors. Most doctors don’t do these things. But a few do and they are protected by their peers. Its called the conspiracy of silence.

To be a case the doctor must have done something wrong. Seriously wrong. It is not a case if a doctor performs a difficult surgery, follows appropriate procedures dictated by the science of medicine and the patient simply ends up with a bad result. That is not a case and I would tell the patient that in rejecting the case. Even in cases where the doctor or hospital has made a serious mistake I turn down 9 out of 10 inquiries for the following reasons:

I know that the doctors and hospitals and their insurance companies will drag the case out for two or three years at a minimum. During that time I will receive no revenue for many hundreds or even thousands of hours of work that I and my staff must perform on the case.

In order to find out if there is a case, since I am a lawyer and not a doctor, I must have the entire medical record reviewed by a medical specialist in the area of the suspected malpractice. That means in a cancer case I must find a well respected and honest cancer specialist who will review the file and tell me whether there was an avoidable medical error committed by the doctor or hospital involved.

Medical doctors in Hawaii will not review cases against another Hawaii doctor or hospital, so I must send the entire medical file to a mainland doctor to tell me whether or not there is a case. That reviewing doctor will charge _ usually _ somewhere between $2000 and $5000 to review the file. To have any chance of winning the trial the expert chosen must be someone with unquestionable credentials whose reputation for excellence among her or his peers is exceptional. Experts of that caliber are very expensive. They are willing to testify against another doctor but only if the negligence was significant. The opinion I get back may be that there was no negligence or that the negligence by the doctor or hospital did exist but that it was a close call. In that case I will not proceed with a claim. No medical malpractice lawyer that I know would take the case. Since the client never pays for the out-of-pocket expenses in a case, in this situation I would simply lose the amount of money invested in the review of the medical file.

If I agree to take the case, I then must file a claim with a state administrative agency, part of the Department of commerce and Consumer Affairs (DCCA) named the Medical Inquiry and Conciliation Panel (MICP). That administrative process will take approximately one year. It is intended to resolve cases and avoid a lawsuit but it rarely does that and most of the time a lawsuit must be filed.

After the MICP process is completed a lawsuit is filed in court.

The typical time for a medical malpractice case to get through court is 2 to 3 years. During that time the parties will do what lawyers call “discovery” which starts with formal document production and answering written questions called interrogatories by both sides. The case then goes into oral depositions where the parties and witnesses are questioned in front of the court reporter and give testimony under oath about the case. Each deposition can last up to seven hours meaning an attorney can cross examined the witness or a party for seven hours. That testimony is taken down by a court reporter and eventually written up in a booklet that can be used later in the case. The lawyers for the doctors and hospitals are paid by the hour for all of their work on the case but the lawyer for the patient receive no compensation for the time spent on anything in the case and thus do not generate any revenue for the extensive amount of time spent in this discovery process.

In the months before trial the parties take experts depositions after the experts has submitted written reports containing their opinions. Both sides have as many as three or four experts who typically charge between $500 and $800 an hour. A single expert can be expected to charge a total of $25,000-$50,000 on average in a medical malpractice case. I must advance that money to pursue that claim for my client.

In medical negligence cases the plaintiffs contingent fee lawyer, who is not receiving any compensation over the two or three year while the case grinds through discovery, is also required to advance between $50,000 and $200,000 for the costs.

The attorneys for the doctors and hospitals not only are paid by the hour for their work as the case progresses, but the insurance companies pay all of the costs for experts, travel and other expenses. They don’t mind if the case goes on for two or three years.

By making every medical negligence case very expensive for the lawyer representing the injured patient, the insurance company discourages lawyers from taking those cases and that results in many valid claims going unprosecuted because the patient can’t find a lawyer willing to gamble with those high stakes. Only a small percentage of the 251,000 families of patients who die annually from avoidable medical errors ever find a lawyer to represent them to hold the substandard health care provider accountable.

The question I ask myself when I look at a potential, valid, medical malpractice claim is whether I can afford to gamble spending $50,000 to $200,000 and work without compensation for two or three years on the gamble that the jury will rule in our favor and compute an amount of damages that is sufficient to reimburse me for my expenses and give me fair compensation for three or four years of work, allow my client to repay any medical liens and leave them with just compensation.

There you have it. That is the business side of a contingent fee lawyer deciding whether to sue a doctor who committed in avoidable medical error and injured the patient. It is a difficult and risky way to make a living. An added factor is that the insurance industry and the major doctors organizations have spent billions of dollars over the past 30 years spreading false propaganda about frivolous lawsuits and doctors not been able to practice medicine because lawsuits make their insurance too expensive. Jurors have been brainwashed to sympathize with doctors. You don’t see news about medical errors being the third largest cause of death in the United States. As my earlier article cited above shows, the public is being fed lies on these subjects and the media rarely does the work necessary to expose the fraud. Why would any lawyer file a frivolous medical malpractice case? The cases are hard enough when they are extremely strong, clear cases. You might also find my article Is H. R. 1215 the biggest fraud on the public ever? informative.

A resident of Honolulu, Hawaii, Wayne Parson is an Injury Attorney that has dedicate his life to improving the delivery of justice to the people of his community and throughout the United States. He is driven to make sure that the wrongful, careless or negligent behavior that caused his clients' injury or loss does not happen to others.

JC

Rebecca Paulson

1215 will probably cause nursing home residents to be subject to horrors as the odds will be no lawyer will take cases based on the cap on damages. That is how the laws have rigged the system against the public here in WI where medical malpractice problems appear to run rampant and there is no consequence or accountability for wrongdoing causing great suffering and death. As a result, Wisconsin residents and especially the vulnerable are subject to horrors which can not be indemnified thru the justice system. The health care system is broken and it terrible.

Wayne Parsons

I appreciate your comment Rebecca. With avoidable medical errors causing over 250,000 deaths a year something must be done to deal with the substandard care. The nursing home industry home industry has been taken over by large corporate operations where the CFO of the nursing home cuts staffing and supplies and the elderly residents get sicker and sicker until they die. H. R. 1215 will make it much worse for patients and their families.